ELR Citation: ELR 21378
No(s). 89-35688 (9th Cir. Sep 10, 1990)

The court holds that the Bureau of Land Management's (BLM's) sale of certain timber resources in the Wilcox Peak area in southern Oregon did not violate the National Environmental Policy Act, the Federal Land Policy and Management Act (FLPMA), or the Oregon and California Sustained Yield Act (O&C Act). BLM published a Timber Management Plan Environmental Impact Statement (EIS) for the Jackson and Klamath Sustained Yield Unit, of which the Wilcox Peak area is a part. The plan envisioned management of the unit to allow substantial timber harvesting, and in 1985, BLM issued a supplemental EIS (SEIS) to consider the effects of alternative harvesting techniques on the unit. In 1986, BLM prepared a site-specific environmental assessment (EA) considering the environmental impacts of permitting the sale and logging of the Wilcox Peak timber. The EA concluded that the impacts were within those anticipated by the regional EIS, that the Wilcox Peak area presented no significant unique environmental concerns, and that a site-specific SEIS was therefore not required. After BLM sold Wilcox Peak timber in 1987, the U.S. Fish and Wildlife Service listed the northern spotted owl as a threatened species throughout its entire range, including the Wilcox Peak area. The court first holds that BLM's regional EIS and site-specific EA adequately encompassed the threat to northern spotted owls posed by timber cutting of the type contemplated at Wilcox Peak, and thus BLM's decision not to file an SEIS with regard to the northern spotted owls was not arbitrary or capricious. The court next holds that BLM considered all relevent factors in determining that a site-specific SEIS addressing the impacts of timber harvesting on watersheds was not required. The court next holds that plaintiff's alternative challenge to BLM's failure to prepare an SEIS, claiming that cutting in the Wilcox Peak area will increase fire hazards by removing fire-resistant old growth, is precluded by the court's recent decision in Oregon Natural Resources v. Mohla. Moreover, while this challenge, on its face, is not directed at the unit timber management plan as a whole, alleged increases in fire danger are not site-specific and thus precluded by §314 of the 1988 appropriations bill for the Forest Service and BLM. The court next holds allegedly new information does not require BLM to prepare an SEIS. BLM was not arbitrary or capricious when it concluded that new evidence on the sighting of a pair of northern spotted owls was either not credible, lacking significance, or adequately addressed in existing statements. The court next holds that BLM gave adequate consideration to reasonable alternatives. Its EIS considered five alternative management techniques for the unit, its SEIS considered an alternative to clear-cutting, and its EA considered four alternatives plus a no-action alternative. The court next holds that BLM fully complied with the multiple-use analysis requirements of FLPMA, even though BLM ultimately chose to emphasize the production of timber on particular parcels, including the Wilcox Peak area. This determination is not inconsistent with FLPMA and no authority suggests that a site-specific analysis is required when the regional plan complies with applicable multiple-use requirements. Finally, the court holds that BLM did not err in construing the O&C Act as establishing timber production as the dominant use.

A dissenting opinion would hold that the case should be remanded to the district court for reconsideration in light of the northern spotted owl being listed as a threatened species subsequent to initiation of this suit.

[The district court opinion in this case is published at 19 ELR 21159.]

Counsel for Plaintiff-Appellant
Charles G. Levin
Headwaters, Inc.
P.O. Box 1075, Grants Pass OR 97526
(503) 474-6034

Counsel for Defendants-Appellees
Angus E. Crane
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Michael E. Haglund
Haglund & Kirtley
One Main Pl., 101 SW Main St., Ste. 700, Portland OR 97204
(503) 225-0777

Phillip D. Chadsey
Stoel, Rives, Boley, Jones & Grey
900 SW Fifth Ave., Ste. 2300, Portland OR 97204-1268
(503) 224-3380